Tag Archives: Wills

A question that often arises is “what is probate?”, and then frequently, before receiving an answer, the next question is “how do I avoid probate?” It’s kind of interesting when a person feels that they want to avoid something without even having a grasp on what that thing actually is.

When an individual has died and owns property, if there are survivors they will have to submit to a legal process that determines how the decedent’s assets will be distributed. These people who receive the assets are called beneficiaries.

The legal process which appoints the person who will distribute the assets, notifies the next of kin, and files the required tax documents, along with some other required tasks, is commonly referred to as probate.

Now as to our original question – is probate something you want to avoid? Well as with many issues, whether legal or not, the answer is ‘it depends’.

There are various factors that might enter into the decision as to whether or not probate is something that you want to avoid. Typically it can be tied to what assets the deceased owned at the time of death, the actual laws in effect in that particular location since laws do vary around the country, and whether or not maintaining privacy is a major consideration of the person handling the probate process.

Since probate is a public process, all details will be available on the public record, and some individuals might have issues with that.

The type of assets matter because different assets are treated differently, and the treatment of assets does vary from state to state. Some states have very strict requirements for certain types of property such as real estate. If these types of assets are present, it might be desirable to avoid probate and all the associated complicated requirements, or at least simplify the process.

There are ways to avoid probate. It might involve the nature of your assets, it might be how you categorize your assets, or it might involve setting up a trust.